260 S.W. 868 | Tex. Crim. App. | 1923
Lead Opinion
Appellant was convicted in the District Court of Bell County of robbery, and his punishment fixed at five years in the penitentiary.
We have looked over all the errors raised in the transcript on behalf of appellant but consider worthy of discussion only the two that are briefed by his attorneys. *249
Appellant was indicted for robbery, it being charged that he took by force from prosecuting witness Roddy a diamond stud. In Roddy's testimony he spoke of the stolen property as a diamond pin in some places, and also spoke of it as a diamond stud. Asked specifically on cross-examination he said: "It was not a stud that screwed into the tie but it was on a pin and was a diamond stick pin." Other witnesses spoke of it as a stud. The court below instructed the jury that unless they believed from the evidence beyond a reasonable doubt that the defendant took from Roddy the diamond stud as charged in the indictment they should acquit him.
Motion for an instructed verdict because the proof of the identification of the property varied from the allegation, was denied, and this is here presented vigorously as cause for reversal. Many authorities are cited in support of the proposition that descriptives in the State's pleadings must be met by exact proof or the conviction will not stand. Substantial correspondence is all that is necessary unless the alleged variance be calculated to so mislead the accused as that he could not reasonably know from the pleading of the State what he would be called on to meet. If there be any difference between a stud and a pin, it is not made to appear from testimony of dealers or experts or those who might be in position to know. Whether a pin is a stud or vice versa does not seem to have called for any expression at the hands of the makers of dictionaries or law text writers. In Webster's International Dictionary, under the word "stud," we find the following among other definitions: "(3) A kind of nail with a large head, used chiefly for ornament; an ornamental knob; a boss. (4) An ornamental button of various forms, worn in a shirt front, collar, wristband, or the like, not sewed in place, but inserted through a buttonhole or eyelet, and transferable. (5) A short rod or pin, fixed in and projecting from something, and sometimes forming a journal." Whether the property taken was a pin or a stud, even if there be any difference between the two, was a question of fact for the jury, and the testimony concerning same making it appear that the article was called by the witnesses both a stud and a pin, we would uphold the refusal of the trial court for an instructed verdict based on the variance. However we seriously doubt there being support of any claim of variance. In People v. Nolan,
The State's theory in this case was that one J.H. Estes and appellant acted together in robbing Roddy. Estes turned State's evidence and testified that pursuant to an agreement and conspiracy between himself and appellant, the assault and robbery took place. He further said that appellant was to take charge of any booty obtained and afterwards divide with him.
By a bill of exceptions appellant complains of the admission of testimony from one Burns to the effect that on the morning after the alleged robbery he saw Estes at the Y.M.C.A. in Temple, Texas. That having seen in the papers that Roddy had been robbed, he made a remark to Estes in effect: "What in the hell did you want to high-jack Roddy last night for?" and that Estes turned with a pale complexion and said to witness: "Have you seen the call boy?" to which witness replied, "No, I am looking for him myself," and that Estes then said: "Do you know where Bill Henderson went? Do you know whether Bill Henderson went out on the South local this morning?" and that he then asked Estes what he was doing laying off or taking a vacation for Christmas, and that Estes turned and walked out. This appellant objected to as being acts and declarations of Estes after the consummation of the conspiracy and out of the presence and hearing of appellant. We do not agree to the proposition that the conspiracy had been consummated. Its object and purpose evidently was to secure ownership and possession of the diamond belonging to Mr. Roddy, and Estes did not then know, according to his testimony, whether appellant had secured any diamond by the assault on Roddy or not. Sapp v. State, 87 Tex.Crim. Rep.. The acting together of Estes and of Appellant being a pertinent fact for the State to prove, it was not bound in its proof by Estes' testimony to the effect that he and appellant were acting together. The State might go outside of and beyond the testimony of Estes and show in any other legitimate way that it could, the acting together of said parties. If the State was relying upon circumstances to show that Estes and appellant were acting together, it could hardly be called in question that it might prove prior to the consummation of the conspiracy, that Estes was searching for appellant or that Estes turned pale when charged with having been a party to the robbery. Whatever circumstances would be admissible as a part of the State's legitimate proof of an acting together between Estes and appellant *251 in any case, would still be admissible even though Estes had turned State's evidence and admitted his participation in the affair.
Deeming appellant's contentions without merit, the judgment will be affirmed.
Affirmed.
Addendum
Our attention is directed to some matters which were not discussed in the original opinion, only one of which, however, will be considered. It is asserted that the charge upon accomplice testimony is erroneous. Timely exception was presented thereto, one particular objection being to the use of the word "alone" as intimating that the accomplice testimony only might be sufficient to warrant a conviction, the other objection being that the charge is not a pertinent application of the law of accomplice testimony under the facts of this case. Upon original submission the importance of this assignment escaped us. The charge criticised is in the following language:
"You are charged that the witness, J.H. Estes, is an accomplice. Now, you can not convict the defendant upon his testimony alone, unless you first believe that his testimony is true and shows that the defendant is guilty as charged, and then you cannot convict the defendant upon said testimony unless you further believe that there is other testimony in the case corroborative of the accomplice's testimony, tending to connect the defendant with the offense committed, if you find that an offense was committed, and the corroboration is not sufficient if it merely shows the commission of the offense."
In lieu of the charge given the following special charge was requested and refused:
"A conviction cannot be had upon the testimony of an accomplice unless the jury first believe that the accomplice's evidence is true and that it shows the defendant is guilty of the offense charged against him, and even then you cannot convict unless the accomplice's testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission. You are charged that the witness J.H. Estes was an accomplice, if any offense was committed, and you are instructed that you can not find the defendant guilty upon his testimony unless you first believe that the testimony of said Estes is true and that it shows the defendant is guilty as charged in the indictment; and even then you can not convict the defendant unless you further believe that there is other evidence in the case, outside the evidence of the said Estes, tending to connect the *252 defendant with the commission of the offense charged in the indictment, and then from all the evidence, you must believe beyond a reasonable doubt that the defendant is guilty."
The requested charge was evidently copied from Brown v. State, 57 Tex.Crim. Rep.,
"It is plain that the jury should never be told that they could convict on the testimony of an accomplice alone, for this is just what they can not do under our statute." (Art. 801, C.C.P.)
The use of the word "alone" in a charge upon this subject is not proper but rather the avoidance of its use is recommended.
The charge criticised tells the jury that they can not convict upon Estes' testimony alone, unless the jury first believe that his testimony is true and shows that the defendant is guilty as charged, etc. The applicability of this instruction can only be measured by the facts in this particular case. Estes had testified that he and appellant had entered into an agreement to rob C. Roddy; that they had attempted to do so one or two occasions but had failed to meet him; that on Thursday night, December 22, 1921 they went to his house where they waited until he and his son drove up their car; that he (Estes) held a gun on the son when he stepped out of the car, and that appellant presented his gun on C. Roody who commenced to holloa; That he saw appellant raise his arm as if to strike C. Roddy over the head; that the gun was discharged and that he (Estes) ran; that he did not know whether appellant secured the diamond stud or not; that he never saw appellant any more until Saturday night when appellant denied having obtained it. It will be seen from this statement that Estes did not make out a complete case against appellant because he did not know whether a robbery was in fact effected. His evidence went no further than to make out an attempt *253
to commit the crime of robbery. Estes' testimony, if true, fails to show guilt because he does not claim to know whether any robbery was in fact committed. C. Roddy had known appellant for eight years or more, the latter being a customer of Roddy's; Roody testified that he was hit several times over the head with a pistol and that quite a struggle occurred between him and his assailant over the diamond stud. He did not attempt to identify appellant, as the robber had on a mask, but only went far enough to say that appellant corresponded in size with the man who assaulted him. Now under this state of facts let us look to the charge given on accomplice testimony. The jury may have believed Estes' testimony to be true, and they may also have believed that it showed appellant to be guilty of robbery, but regardless of whether they believed about the matter his evidence fell short of showing that appellant was guilty, because his evidence under the law, does not make out a case of robbery, and yet the jury are instructed that if there is other testimony corroborative of Estes' which tends to connect appellant with the offense committed, a conviction might follow. The corroborative testimony under this charge might tend to connect appellant with the commission of the offense just as Estes' testimony might sharply connect him with it and yet there be lacking evidence showing appellant's guilt beyond a reasonable doubt. The charge in the Oats case, reported in the 67 Tex.Crim. Rep.,
We have reached the conclusion on more deliberate consideration that the charge complained of was not appropriate in the present case, and under the facts are not able to say it may not have been hurtful.
The order of affirmance is set aside, the judgment is reversed and the cause remanded.
Reversed and remanded.
